NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0150n.06
No. 12-1860 FILED
Feb 12, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
COREY YARBROUGH, ) MICHIGAN
)
Defendant-Appellant. )
Before: MARTIN and SUTTON, Circuit Judges; HOOD, District Judge.*
PER CURIAM. Corey Yarbrough, who is represented by counsel, appeals a district court
order denying his motion for a reduction of sentence filed pursuant to 18 U.S.C. § 3582(c)(2).
In 2006, a jury convicted Yarbrough of possession with the intent to distribute five grams or
more of cocaine base and possession with the intent to distribute cocaine. Yarbrough had an
advisory sentencing guidelines range of 188 to 235 months of imprisonment. However, the district
court varied downward and imposed concurrent terms of 160 months of imprisonment. We affirmed
Yarbrough’s convictions on appeal. United States v. Yarbrough, 272 F. App’x 438, 439 (6th Cir.
2007).
In 2008, Yarbrough filed a motion to reduce his sentence pursuant to section 3582(c)(2). The
district court granted the motion and reduced Yarbrough’s sentences from 160 months to 138 months
of imprisonment, based on an amended guidelines range of 151 to 188 months of imprisonment. We
affirmed the district court’s decision on appeal. United States v. Yarbrough, No. 10-2449 (6th Cir.
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
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June 28, 2011) (unpublished order). In 2009, Yarbrough filed a 28 U.S.C. § 2255 motion to vacate
his sentence, which the district court denied. We denied Yarbrough a certificate of appealability.
Yarbrough v. United States, No. 10-1499 (6th Cir. Apr. 20, 2011) (unpublished order).
In 2011, Yarbrough filed the instant pro se motion for reduction of sentence pursuant to
section 3582(c)(2), arguing that he was entitled to resentencing under the Fair Sentencing Act of
2010, Pub. L. No. 111-220, 124 Stat. 2372. A sentence modification report from the probation office
noted that Yarbrough’s sentencing guidelines range had subsequently been lowered, resulting in an
amended sentencing range of 110 to 137 months of imprisonment. Therefore, Yarbrough was
eligible for a sentence reduction. The Probation Officer did not recommend a reduction in
Yarbrough’s sentence because a fifteen percent reduction from that range would result in a sentence
shorter than the sentence received by Yarbrough’s codefendant. Both parties responded to the
sentence modification report. After consideration, the district court denied Yarbrough’s request for
a further sentence reduction.
On appeal, appellate counsel has filed a motion to withdraw, in which she represents that her
review of the record and concomitant legal research has led her to the conclusion that there are no
legally non-frivolous issues present in the appeal. Counsel accompanies her motion with a brief
prepared in compliance with Anders v. California, 386 U.S. 738, 744 (1967), and Sixth Circuit Rule
12(c)(4)(C). Counsel asserts that the district court’s discretionary denial of Yarbrough’s motion for
a reduction of sentence is not reviewable by this Court and, even if reviewable, was not an abuse of
discretion. Yarbrough has not filed a response to counsel’s motion to withdraw, despite being
notified of his right to do so. After undertaking an independent examination of the record pursuant
to Penson v. Ohio, 488 U.S. 75, 82–83 (1988), we concur with counsel and grant the motion to
withdraw because no arguable grounds for appeal are apparent in the record.
We have jurisdiction under 18 U.S.C. § 3742 to review the decision in “a sentence-reduction
proceeding only where the claim is that the resulting sentence (1) was imposed in violation of law;
No. 12-1860
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(2) was imposed as a result of an incorrect application of the sentencing guidelines; (3) is greater
than the sentence specified in the applicable guideline range; or (4) was imposed for an offense for
which there is no guideline and is plainly unreasonable.” United States v. Bowers, 615 F.3d 715, 723
(6th Cir. 2010) (internal quotation marks and citation omitted). In the district court, Yarbrough
argued that he should be granted a sentence reduction because he was eligible for a reduction, has
bettered himself during his incarceration, and has the support of family and friends. As counsel
concluded, the denial of a sentence reduction on these grounds is based in reasonableness and is not
appealable. Id. at 725. Nevertheless, Yarbrough’s sentence of 138 months is greater than the
amended guidelines range of 110 to 137 months, and we have jurisdiction to review the district
court’s decision. Id. at 722–23.
Section 3582(c)(2) does not require a reduction in a sentence when the sentencing range has
been lowered. This decision is discretionary and, therefore, is reviewed for an abuse of discretion.
United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010). In determining whether to grant a
reduction, the district court judge must consider the sentencing factors of 18 U.S.C. § 3553(a) and
“the nature and seriousness of the danger to any person or the community that may be posed” by the
reduction. USSG § 1B1.10 cmt. n.1(B). A section 3582(c)(2) reduction does not constitute a full
resentencing, however, and the court need not expressly articulate its analysis of each factor if the
record demonstrates that the court indeed considered them. United States v. Watkins, 625 F.3d 277,
281 (6th Cir. 2010).
The district court’s order noted that it considered Yarbrough’s motion, the policy statement
set forth in USSG § 1B1.10, and the sentencing factors set forth in section 3553(a). Further, the
district court judge was aware of the record and Yarbrough’s particular characteristics because he
was the same judge that originally sentenced Yarbrough in 2006.
An independent review of the record reveals no issue that would support an appeal in this
case. Counsel’s motion to withdraw is granted and the district court’s judgment is affirmed.